MERIT SYSTEMS PROTECTION BOARD APPEALS

Merit Systems Protection Board (MSPB)

The Merit Systems Protection Board (MSPB) is an independent, quasi-judicial agency in the Executive Branch that serves as the guardian of Federal merit systems.  The MSPB is an appeals board that enables federal employees to challenge certain decisions made by federal agencies where they are or were employed or decisions made by the Office of Personnel Management (OPM).  The mission of the MSPB is to "Protect the Merit Systems Principles and promote an effective Federal workforce free of Prohibited Personnel Practices."  MSPB carries out is statutory responsibilities and authorities by adjudicating individual employee appeals.

What Type of Appeals Does the MSPB Review?

The MSPB has the abilities to review numerous types of federal employee appeals, but the most common appeals include:

• Removals from Federal Service
• Suspensions (Over 14 days)
• Removals (or Reductions in Grade) for unacceptable performance
• Whistleblower retaliation cases (Independent Right of Action - IRA cases)
• USERRA military discrimination cases (appeals under the Uniformed Services Employment and Reemployment Rights Act) and the Veterans Employment Opportunities Act (VEOA)
• Retirement matters involving final determinations that affect current or form federal employees under the Civil Service Retirement System (CSRS) or the Federal Employees Retirement System (FERS)
• Suitability Disqualifications
• Probationary federal employee terminations based on partisan political reasons, marital status or on conditions arising before appointment
• Reductions-in-Force (RIF) actions against federal employees and members of the Senior Executive Service (SES)

What Does the MSPB Not Do?

The MSPB does not:

• Hear and decide discrimination complaints except when allegations of discrimination are raised in appeals from agency personnel actions brought before the Board.  That responsibility belongs to the Equal Employment Opportunity Commission (EEOC)
• Negotiate and resolve disputes, unfair labor practice complaints, and exceptions to arbitration awards.  That responsibility belongs to the Federal Labor Relations Authority (FLRA)
• Provide advice on employment, examinations, staffing, retirement and benefits.  That responsibility belongs to the Office of Personnel Management (OPM)
• Investigate allegations of activities prohibited by civil service laws, rules or regulations.  That responsibility belongs to the Office of Special Counsel (OSC)
• Hear or decide claims of whistleblowing reprisal filed by employees of, or applicants for employment with, the Federal Bureau of Investigation (FBI). That responsibility belongs to the US Department of Justice Office of Attorney Recruitment and Management (OARM)
• Have jurisdiction over non-Federal appeals from private industry, local, city, county or state employees

How to Start the Appeals Process

In the majority of cases, an appeal with the MSPB must be filed within thirty (30) calendar days of the effective date of the agency's action, if any, or within thirty (30) calendar days after the date of receipt of the agency's decision, whichever is later.  The appeal must be filed in the correct MSPD regional or field office, based on geographic location.  Once the appeal is filed, the case will be assigned to a MSPB Administrative Judge who will issue an Acknowledgement Order which provides the ground rules for the appeals process.  The filing of a MSPB appeal can be done by completing a paper version of the appeals form or by e-filing.

Discovery Phase of Appeals Process

The discovery phase of an MSPB appeal is critical to you being able to prove your case.  Discovery takes place immediately after the filing of the appeal and generally must be initiated within thirty (30) days following the issuance of the Acknowledgement Order.  In the discovery phase you have the opportunity to obtain relevant documents and records as well as conduct depositions of relevant witnesses.

Settlement Options

Once you or your representative is contacted by the attorney that will be representing the Agency in the appeal process, you will most likely be asked to provide a settlement demand.  This is your opportunity to make your demand to the Agency in order to dismiss the appeal.  MSPB cases most often result in some form of settlement.

MSPB Pre-Hearing

If a settlement cannot be reached, then the next stage of the appeal is the hearing.  At this stage, the parties will first submit their pre-hearing conference submissions, along with their evidence in support of their appeal and prepare for the hearing stage before the Administrative Judge.  The Judge will review the pre-hearing submissions of the parties and decide which witnesses and evidence will be heard at the hearing.

MSPB Hearing

The hearing itself will take place at one of the regional or field offices of the MSPB.  Hearings can also take place in other locations, such as the agency's location or by video conference at the discretion of the Administrative Judge.  At the hearing, the parties will typically start with opening statements, and then each party will put forth their case through witnesses and exhibits.  The parties will then offer their closing argument.  The Judge's ruling, called an Initial Decision, is then issued and usually comes out in one to three months after the hearing.

Click here to see a MSPB mock hearing (Part I)

Click here to see a MSPB mock hearing (Part II)